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Ignorance Trumps The Particularity Requirement

It’s good to have no clue. Information is a constraint, a limitation. This sounds counterintuitive, but that’s only because you’ve never been asked to sign a search warrant for everything in the world ever. That’s when ignorance becomes magic.

A New York judge defended a controversial order that gave the government access to all content of the Gmail account of a target in a money laundering investigation, holding that courts have long recognized the practical need for law enforcement to seize documents if only to determine whether they fall within the warrant.

Magistrate Judge Gorenstein is definitely not part of the magistrate’s revolt, the handful who have refused to grant the government carte blanche to sift through every email a person ever sent or received, without regard to there being any possibility of anything in the email that could conceivably be related to whatever probable cause justification was proffered.

Therefore, we believe the case law we have cited concerning searches of hard drives and other storage media supports the Government’s ability to access an entire email account in order to conduct a search for emails within the limited categories contained in the warrant. Notably, every case of which we are aware that has entertained a suppression motion relating to the search of an email account- other than the D.C. Opinion, the Kansas Opinion and the cases cited in footnote 2 above- has upheld the Government’s ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant.

Take everything, sees everything, read everything, and figure out what you’re entitled to afterward. How else could the government know what it wants until it see everything available?

And it’s hard. Way too hard to demand that the government first figure out with specificity what it might need and for which probable cause exists. And clearly, it couldn’t be left to the email host, because they certainly wouldn’t have the government’s eagle eye to spot incriminating content amidst personal information which is none of the government’s business.

Thus, the D.C. Opinion’s proposal gives insufficient consideration to the difficulty of executing a search warrant for digital information and the likelihood that the Government’s investigative efforts would be severely hampered by requiring that this crucial and complex investigative activity be performed by an email host.

The Gorenstein decision is a fascinating slide down the slippery slope. It begins with the premise that it is the court’s duty to facilitate the government’s “investigative efforts,” and that it would contravene the court’s responsibility to do anything that makes the government’s “critical and complex investigative activity” harder.

Demanding that the government adhere to the specificity requirements of the Fourth Amendment would “severely hamper” the government’s crucial function. Can’t have that, right?

When the underlying assumption is that the foremost requirement of a court is the facilitation of the government’s investigative function, it’s completely understandable that everything that follows is framed as a justification for search without limitations. Of course, if the government approached its warrant application with knowledge, say that it was seeking emails that offered a bribe, the judge might have limited the warrant to emails that refer to a bribe.

But then, they wouldn’t get everything that way. What if the email didn’t use the word “bribe”? What if the email used code? What if the email discussed payment instead of bribe, or just spoke of an amount without the words “payment” or “bribe”? Then the evidence might be there, sitting in a gmail account, and the government would never find it. That’s just not acceptable, that there is evidence and the government cannot get its hand on it. The Constitution couldn’t possibly be meant to deny the government evidence of a crime, whatever it may be and wherever it may be found. Could it?

Well, that’s exactly what the Constitution intends to do. The Fourth Amendment isn’t the grease to facilitate the government’s seizure of evidence; it’s the brake on governmental fiat. The purpose of the Constitution is to limit government, not to make its job easier.

The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say “…unless you get a warrant.” The warrant process is supposed to limit unreasonable searches and seizures by forcing law enforcement to detail (in a sworn statement) the specifics of what’s being sought and the efforts that will be made to limit the seizure to the scope of the investigation. There’s nothing “reasonable” about this open-ended request. Gorenstein’s decision places ease of law enforcement access above Constitutional rights.

Judge Gorenstein’s decision is an exercise in excuses, explaining away, issue by issue, argument by argument, why the imposition of limits would impair the government’s ability to do whatever it wants to do. The decision tacitly assumes that the government’s need to investigate and prosecute is the highest and most important calling of government, that it is unreasonable to hamper the government’s ability to do whatever it wants to do.

So Judge Gorenstein, in contrast to the rulings of his fellow magistrate judges who were unwilling to turn over the internet to the government lest they miss something they might want, in the absence of particularity, and accumulate the vast wealth of content for which no probable cause exists, gave it all to the government. Anything else would mean that the government might not be able to have its way, since who knows what good stuff it might find in sifting through everything.

Ah, you noted the juxtaposition of the today’s posts. The secret hidden message is that the efficacy of the legal systems hangs by the most tenuous of threads, the judge’s “sensibilities.” It’s that fragile.

However, it is nice to see that you may have the occasional nightmare of the wind rustling through what’s left of societal hairs while standing a few inches from the track as the freight train motors on by down grade.

Q is, if the best strategy is to let all that momentum run its course a few turns down the tracks or take ones chances and attempt to jump on and hope there is sufficient time to work your way up to the locomotive and whip some sense into the conductor.

Too bad whistle stops aren’t fashionable anymore. There ought to be a way in-between thrill and folly that might allow a chap a good nights rest a few times a week.

A fungi?? There’s not mushroom at those parties for a fungi like yourself. You’ll prolly have to sit on the toad stool and will be about as popular as a shitake in the punch bowl. As the rest of the crowd sings along to, “There was a Fungus Among Us”, directed @U . . .

There is, and a few magistrates have refused to sign off on search warrants because of the facial overbreadth which could be addressed fairly simply. They could seek emails based on a search of email addresses (or eliminating email addresses known to be family, lawyers, privilege, uninvolved, etc.) of people for whom probable cause exists, a search of words and phrases, even if expansive, which are designed to find anything remotely related to probable cause (or eliminating words and phrases which would clearly indicate personal, privileged or unrelated emails).

So sure, if could be done, and it really wouldn’t be that much “hard work.” But the fear is that someone, some way, they might miss something if they don’t see everything, as if the purpose of the Constitution is to guarantee that the government is never denied a bit of evidence, no matter what, rather than guarantee protection against the government obtaining huge swatches of personal, unrelated emails that it has no right to see.

So long as some magistrates realize the problem, there is hope. But then, some magistrates are only concerned with the burden on the government and what they can do to make the government’s job easier.

From a recently revealed confidential DOJ memorandum, titled “How to Win Warrants and Influence the Right People”, in a footnote describing the use of faux Latin to impress gullible and insecure magistrates:

Herein will affiant describe
How we’ll paw through it all, find a bribe.
If you don’t hate us,
You’ll facilatatus,
Or we’ll kick you right out of our tribe.

Scott H. Greenfield

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SHG